By: Victoria Ramos
Taking an appeal in the Appellate Term First Judicial Department (AT1) and Appellate Term Second Judicial Department (AT2) can be daunting for practitioners unfamiliar with their rules and procedures. While there are many factors to consider once you file an appeal, one of the first and arguably most important factors to consider is the court-imposed deadline. No practitioner wants to find themself in a position where they miss their client’s deadline to perfect. Preserving your client’s right to appeal is imperative. This article will outline the deadline to perfect an appeal in AT1 and AT2, respectively, so you can plan your time accordingly and focus on other aspects of the appeal.
AT1 and AT2 have starkly different rules on the deadline for an appellant to perfect their appeal. AT1 does not impose a deadline for an appellant to perfect. However, if opposing counsel files a motion to dismiss the appeal for failure to perfect, AT1 will issue an order directing the appellant to perfect by a specific term deadline. If AT1 grants the appellant’s motion for a stay, the court will also issue an order directing the appellant to perfect by a specific term deadline. Otherwise, AT1 does not impose a deadline for an appellant to perfect. Once the appellant perfects by the filing of their record on appeal and appellant’s brief, the appeal is noticed for an AT1 term. The term the appeal is noticed for depends on when the appellant perfects. The term will also dictate the deadlines for the opposition brief and your reply brief, as well as the argument date. Accordingly, plan to perfect for a term that aligns with your schedule.
Conversely, in AT2, you have six months from the date on your Notice of Appeal to perfect. If you need additional time to perfect, you may request an extension by filing a letter application or stipulate to an extension of time. A letter application is the preferred method for obtaining an extension, as AT2 does not require the appellant to get consent from opposing counsel and applications are routinely granted. Unlike AT1, AT2 does not employ term deadlines. Opposing counsel’s responsive brief will be due within 21 days after service of the appellant’s brief. Your reply brief will be due within seven days after service of the last served respondent’s brief.
The appellate process is not simple, and practitioners often juggle multiple appeals. Navigating competing appellate deadlines in different appellate courts is challenging. Familiarizing yourself with each appellate court-imposed deadline is imperative to plan and allocate time accordingly.